Cumulus Media has filed for the dismissal of all three of Nielsen’s counterclaims to its antitrust lawsuit, calling them “transparent attempts to retaliate” and “scorched-earth tactics” designed to “send a message” to anyone challenging Nielsen’s monopoly.
Nielsen filed the counterclaims on February 2 alongside its answer to Cumulus’s October 2025 antitrust complaint, alleging breach of contract and seeking a declaratory judgment that Cumulus violated its Services Agreement. The entire set of claims appears to rest on a single email sent by Cumulus employee Pierre Bouvard to Eastlan Ratings CEO Michael Gould, allegedly sharing Nielsen ratings data with the small radio ratings competitor.
In a motion filed March 4 in the Southern District of New York, Cumulus argues the claims are legally deficient, and are meant to “distract from Nielsen’s unlawful conduct, escalate legal costs, and send a message to the market that any competitor or customer challenging it will be met with scorched-earth tactics.”
Per Cumulus, Nielsen’s own incorporated testimony forecloses the breach of contract claim.
Gould testified at the December 2025 preliminary injunction hearing, under questioning by Nielsen’s own counsel, that he never opened the attachments. “I didn’t look at it, but yeah, I must have received it. I try to be courteous. When people send me things, I try to recognize them. I’m also busy, and I must admit I don’t look at every attachment on every email. So I didn’t,” Gould testified. He further confirmed Eastlan routinely receives Nielsen data through ordinary industry channels. “We’ve seen over the years, we’ve seen some Nielsen data for sure. It’s come from a variety of different ways, but generally it comes from a client. Many times comes from — actually more often comes from an advertising agency with a question,” Gould said.
On whether Cumulus specifically drove Eastlan’s knowledge of its own data quality, Gould was direct: “We know the data is comparable. No, not specifically because of Cumulus. We have been doing this a while.”
Cumulus argues those admissions, incorporated by reference into Nielsen’s own pleading, directly contradict Nielsen’s theory of harm. Every category of damage Nielsen identifies, like lost market share, lost customers, harm to business reputation, and competitive disadvantage, qualifies as consequential under New York law and is expressly waived by the parties’ Services Agreement. The filing argues Nielsen’s causal chain requires a sequence of hypothetical intervening actions by Eastlan, none of which are alleged to have actually occurred.
The unfair competition counterclaim draws three separate dismissal arguments: it is duplicative of the contract claim, the same contractual bar eliminates the special damages New York law requires to sustain it, and Nielsen nowhere alleges that Cumulus and Nielsen are competitors, a threshold requirement under Second Circuit authority.
The declaratory judgment counterclaim, Cumulus argues, “must be dismissed if it is merely duplicative of a plaintiff’s breach of contract claim” and would resolve no issues beyond those already presented by the companion contract claim.
Cumulus places the counterclaims within what it calls Nielsen’s broader use of litigation as a competitive weapon, noting Nielsen has sued at least four upstart competitors since 2021.
A TVision Insights countersuit against Nielsen, filed in Delaware in November 2025, alleged Nielsen “uses its vast resources to bury it under a mountain of baseless lawsuits, without any regard to the merits of those lawsuits.” Cumulus’s filing points to Nielsen’s own requested relief of dismissal of Cumulus’s antitrust complaint as evidence of improper purpose, arguing it “bears no connection to any purported harm Nielsen has suffered.”
On December 30, the court granted Cumulus’s preliminary injunction after a three-day evidentiary hearing, finding Cumulus had shown a substantial likelihood of success on its claims challenging Nielsen’s policy of conditioning national radio ratings data sales on customers purchasing local ratings data. That injunction has since been stayed by an appellate court, pending further litigation.
